138 NI Act | Alteration Alone Cannot Quash Cheque Bounce Case — Question of Who Altered Cheque Is Matter for Trial: J&K & Ladakh High Court

“Whether Alteration Was Made by Drawer or Payee Is a Pure Question of Fact – Not a Ground for Quashing Complaint”, In a reportable judgment that underscores the limited scope of pre-trial interference in cheque dishonour proceedings, the High Court of Jammu & Kashmir and Ladakh at Srinagar has dismissed a petition seeking quashing of a complaint under Section 138 of the Negotiable Instruments Act on the ground of alleged material alteration in the cheque amount. Justice Sanjay Dhar, speaking for the Bench on 21st November 2025, firmly held that “whether the alteration in the cheque was made by the drawer or the payee is a matter that requires evidence, and cannot be determined in proceedings under Section 482 CrPC or Article 227 of the Constitution.”

The Court was dealing with the plea of Abdul Hamid Wani, who had challenged the summoning order dated 10.06.2022 and the maintainability of the complaint filed by Abdul Hamid Lone on the allegation that the cheque for ₹14,00,000 had been dishonoured due to unauthenticated alterations in the amount.

The petitioner had alleged that the cheque was issued only for ₹14,000, and that the complainant had committed forgery by converting it into ₹14 lakhs. The cheque was dishonoured by the bank with the remark “alterations require drawer’s authentication,” and the complainant, after serving a statutory notice under Section 138(b), proceeded to file the complaint when no response or payment came from the drawer.

The petitioner sought quashing of the complaint and the summoning order by invoking the Court’s inherent jurisdiction under Section 482 CrPC (CRM(M)).

Justice Dhar declined to interfere, observing that the defence of forgery and alteration was entirely factual in nature, and that the criminal proceedings could not be short-circuited at the threshold merely on the strength of the accused’s assertion.

The Court observed: “It is always a question of fact whether the alteration was made by the drawer himself or whether it was made with the consent of the drawer. It requires evidence to prove the aforesaid question whenever it is disputed.”

“Dishonour Caused by Drawer’s Own Act May Still Attract Section 138 NI Act”

Referring to the landmark judgment of the Supreme Court in M/s Lakshmi Dyechem v. State of Gujarat, (2012) 13 SCC 375, the Court reiterated that the scope of Section 138 NI Act is wide enough to cover cases where dishonour of the cheque is the result of deliberate acts or omissions by the drawer that are intended to frustrate its clearance.

Quoting directly from the Apex Court, Justice Dhar highlighted:
“So long as the change is brought about with a view to preventing the cheque being honoured, the dishonour would become an offence under Section 138, subject to other conditions prescribed being satisfied.”

The Court further explained that if a drawer, by his own act—such as overwriting or failing to authenticate alterations—renders the cheque dishonourable, he cannot later escape criminal liability by pleading alteration.

Justice Dhar clarified: “If the said alteration has been made by the accused-drawer of the cheque with a view to defeat the proposed proceedings under Section 138... he cannot be absolved of his liability for prosecution.”

However, if the alteration was indeed made by the payee without the drawer’s consent, a different legal consequence would follow. But, the Court emphasized, such a question must be determined by trial, not in pre-trial proceedings.

“Mere Allegation of Forgery Cannot Be Decided Without Evidence”

The Court made it clear that the invocation of Section 87 NI Act, which renders materially altered instruments void, would not assist the petitioner at this stage. That protection is only available to a party who did not consent to the alteration—and the existence or absence of such consent is a factual issue.

Justice Dhar observed: “Whether the alteration was made at the instance of the petitioner or at the instance of the respondent, can be determined only after trial… This is a question of fact which cannot be gone into in the present proceedings.”

The decision also relies on the Supreme Court’s ruling in Veera Exports v. T. Kalavathy, (2002) 1 SCC 97, which held that a complaint cannot be quashed merely because a cheque has been altered unless there is clear, undisputed material to show that such alteration was unauthorised and committed by the complainant.

“Failure to Respond to Statutory Notice Weakens the Petitioner’s Case”

An important circumstance considered by the Court was the petitioner’s silence in response to the demand notice under Section 138(b). Despite being informed that the cheque was dishonoured for alteration-related reasons, the petitioner chose not to respond or issue any rebuttal.

Justice Dhar noted: “Had the petitioner responded to the demand notice and given his version, the situation may have been different… Once the petitioner failed to respond, the determination of the issue as to at whose instance the alterations were made becomes a matter of trial.”

The Court emphasized that once the statutory notice is served, the drawer has the opportunity to contest liability and explain the dishonour. Having not availed this opportunity, the petitioner could not now seek to abort the proceedings by invoking technical grounds.

“No Interference Warranted at Pre-Trial Stage – Petitioner Must Face Trial”

Ultimately, the Court found no illegality in the cognizance taken by the Trial Magistrate, holding that a prima facie case under Section 138 NI Act was made out. The complaint disclosed all the necessary ingredients, and the petitioner’s plea of forgery could not be accepted without full-fledged trial.

Dismissing the petition, the Court ruled: “For the foregoing reasons, the petition is dismissed, leaving it open to the petitioner to project the contentions raised by him… before the learned Trial Magistrate at the appropriate stage during trial.”

The judgment serves as a strong reaffirmation that disputed facts such as alteration, forgery, or lack of consent cannot be determined in quashing proceedings, and that criminal complaints under Section 138 must proceed to trial unless there is an unmistakable legal bar.

Date of Decision: 21 November 2025